Truth may not lie where you think

OPINION: This is a little story about the apprentice who told porkies but managed to win the money in the employment law lottery, writes Mary-Jane Thomas in this week's Work to Rule.

A Ltd employed J as an electrical apprentice. A Ltd dismissed J. The Employment Relations Authority (ERA) had to decide if A Ltd dismissed J in a manner consistent with the obligations spelt out in section 103A of the Employment Relations Act.

The act judges employers on the basis of whether what they did and how they did it "were what a fair and reasonable employer would have done in all the circumstances at the time the dismissal occurred".

In this case, the employer had several reasons to be dissatisfied with the performance of J. A Ltd wrote to J, after discussing the grounds for the dissatisfaction with him and his father. That letter set out the consequences of not reaching the desired standards "so there can be no misunderstanding".

The letter specifically set out the areas needing improvement and gave a review date when performance would be judged again.

Subsequent to that letter and before the review date the employer felt it necessary to have another meeting with J where he outlined further areas of concern. This time he also made it abundantly clear that "your continued employment may be in jeopardy". The employer said that he would think about J's continued employment and set another meeting in a fortnight's time.

Before that meeting could take place the incident that initiated the dismissal took place.

There was no dispute about the bare facts – J rang into work saying that he was ill and could not attend work that day – he had eaten Indian food the night before that had, perhaps, caused his illness.

The next day the employer approached J and asked what he had been doing the day before. He replied that he had been sleeping and doing study. He was pressed about his reply and repeatedly said that he had not left the house. After further questioning he admitted that he had also resat an exam. There was an issue around when he had arranged to resit the exam.

Later that day at a meeting to discuss the matter J was asked if he had any further explanation. He said he had misunderstood what he had been asked about when he had arranged to resit the exam.

The employer said J's excuses "sounded ridiculous" and that this was again an example of the problems and behaviour that he had been warned about – not accepting responsibility for his actions.

Although the exact discussion was not entirely agreed, some salient points were clear. A Ltd asked J to attend a meeting. It appeared that the employer did not specify or formally tell J that the meeting was to consider his future employment or that he faced dismissal.

J was dismissed.

The authority had to consider the enquiry A Ltd made and the decision they made in light of their enquiries. Those then had to be weighed against the test of what a fair and reasonable employer would have done in the circumstances and A Ltd failed at one crucial step to meet the required standard.

A Ltd believed that they had been lied to and that this was another example of J failing to take personal responsibility.

The ERA decided that a fair and reasonable employer would have confronted J with the belief that he had lied, provided him with the information that led to this conclusion and advised him that if his behaviour was proven then this could lead to dismissal. A fair and reasonable employer would then have offered J an opportunity to explain, they would have listened to that explanation and given it careful consideration before concluding that dismissal was appropriate.

Ultimately the ERA decided that J had a personal grievance but that he had contributed to the matter to the extent of 75 per cent.

A lesson to be learnt by both employers and employees: that each can be held to account for their actions in a personal grievance.

» Mary-Jane Thomas is a partner at Preston Russell Law.  E-mail questions to Mary-Jane.Thomas@prlaw.co.nz.

- © Fairfax NZ News